Oliver v. Arnold

• Decision Date: 29 June 2021
• Docket Number: No. 20-20215,20-20215
• Citation: 3 F.4th 152
• Parties: Mari Leigh OLIVER, Plaintiff—Appellee, v. Benjie ARNOLD, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

3 F.4th 152

Mari Leigh OLIVER, Plaintiff—Appellee,

v.Benjie ARNOLD, Defendant—Appellant.

No. 20-20215

United States Court of Appeals, Fifth Circuit.

FILED June 29, 2021

Randall Lee Kallinen, Esq., Law Office of Randall L. Kallinen, P.L.L.C., Houston, TX, Geoffrey Blackwell, Esq., American Atheists Legal Center, Arlington, VA, for Plaintiff—Appellee.

Thomas Phillip Brandt, Francisco J. Valenzuela, Fanning Harper Martinson Brandt & Kutchin, P.C., Dallas, TX, Defendant—Appellant.

Before Wiener, Dennis, and Duncan, Circuit Judges.

James L. Dennis, Circuit Judge:

Mari Leigh Oliver brought suit against Benjie Arnold, her former Sociology teacher at a public high school in Texas, alleging that he violated her First Amendment rights by attempting to compel her to transcribe the United States Pledge of Allegiance and by retaliating against her after she refused. Arnold moved for summary judgment on the ground that qualified immunity protected him from liability. The district court denied the motion, finding that genuine factual disputes regarding Arnold's conduct and intentions precluded a finding that he did not violate any of Oliver's clearly established rights. Arnold filed this interlocutory appeal, and Oliver filed a motion to dismiss the appeal for lack of jurisdiction. Because Arnold seeks to have this court resolve the very factual disputes that the district court found to be genuine and properly submitted for trial on the merits, which we do not have jurisdiction to do, we grant Oliver's motion and DISMISS the appeal.

I. FACTS AND PROCEDURAL HISTORY

A. Background

As discussed in more detail below, we lack jurisdiction in an appeal of a denial of qualified immunity at the summary judgment stage to reexamine the evidence in the record to determine whether the factual disputes identified by the district court are genuine. See Colston v. Barnhart , 146 F.3d 282, 284 (5th Cir. 1998) (examining Johnson v. Jones , 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), and Behrens v. Pelletier , 516 U.S. 299, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996), in explaining that we lack jurisdiction in this context to consider whether "evidence could support a finding that particular conduct occurred" (quoting Behrens , 516 U.S. at 313, 116 S.Ct. 834 )). Instead, we must look only to the district court's ruling, accepting as true the version of the purportedly disputed facts that is most favorable to the claims asserted by the plaintiff. See id. We therefore assume the following facts to be true while expressing no opinion as to whether they are fully supported by the evidence in the record, and we note that a wholly different version of events may ultimately be proven at trial.

Under Texas state law, public school districts must require students to recite the United States Pledge of Allegiance (the "Pledge") every school day. See TEX. EDUC. CODE § 25.082(b). However, the law requires schools to excuse any student from this obligation "[o]n written request from a student's parent or guardian." Id. at § 25.082(c). Klein Independent School District ("KISD")’s pledge policy tracks the Texas statute, and, absent a written excuse from a parent or guardian, students are required to recite the Pledge each day.

Oliver is a young black woman who was enrolled as a student at Klein Oak High School ("Klein Oak") within KISD during the events that gave rise to this case. Oliver objects to the Pledge because she feels that the portion declaring America to be a nation "under God" fails to recognize many religions and does not match her personal religious beliefs. She further believes that, contrary to the words of the Pledge, there is not "freedom and justice for all" in America because she and other black people continue to experience widespread racial persecution. Oliver therefore declines to stand for or recite the Pledge.

During her time at Klein Oak, Oliver's refusal to participate in the Pledge led to a number of confrontations with KISD employees and her fellow students. On November 30, 2015, following one such conflict between Oliver and her Journalism teacher, Oliver's mother LaShan Arceneaux sent an email to the Klein Oak principal and guidance counselor that objected to the teacher "giving [Oliver] a hard time" for abstaining from the Pledge and asked that Oliver be transferred to a different class. The problems persisted, and approximately a year later, on November 14, 2016, Arceneaux sent a second email, this time to the Klein Oak principal and the KISD superintendent. The second email faulted the school for failing to stop the "harass[ment] of students who choose not to say the pledge." It further asserted that Oliver's "desire not to say the pledge is not an opinion, it is a constitutional right."

The following year, Oliver took Arnold's Sociology class. On August 18, 2017, the Klein Oak principal held a meeting with Oliver's teachers, including Arnold, and instructed them that Oliver was not required to participate in the Pledge. Nonetheless, on September 20, 2017, Arnold gave the class an assignment to transcribe the words of the Pledge of Allegiance ("the Pledge assignment"). Although Arnold claims that the assignment had a pedagogical purpose, the district court found that his intentions were genuinely disputed, and we therefore must assume for purposes of this appeal that Arnold's justification was pretextual and Arnold intended the assignment as a mandatory statement of patriotic belief from his students. Oliver refused to complete the assignment and instead drew a "squiggly line."

During class the next day, Arnold told his students that anyone who did not complete the Pledge assignment would receive a grade of zero.¹ Arnold then engaged in an extended diatribe, which we must assume was aimed at Oliver and motivated by his hostility toward her refusal to transcribe the Pledge, in which he lamented what he viewed as the decline of American values and decried a variety of people whose attitudes he deemed to be un-American, including communists, supporters of Sharia law, foreigners who refuse to assimilate into American culture, and sex offenders and those that argue for their rehabilitation.²

Your assignment yesterday was to write the Pledge. If you have a math class and that teacher gives you 10 problems to do, and you say you don't wanna do ‘em, tell me what your grade is[.] It's a zero. And you have the option to do that, but what you've done is leave me no option but to give you a zero. And you can have all the beliefs, and resentment, and animosity that you want. But I made it clear yesterday: Writing it is not something you pledge. But again, but I know the sticker's gone—I used to have it, and it said "America, love it, or leave it." And if you can tell me two countries you'd rather go to[,] I will pay your way there if they're communist or socialist. Most of Europe is socialist and it's crumbling. Or it's communism. But if you ever come back you have to pay me twice what it cost me to send you there. You know there's a lot of things I complain about. So when it comes time in November I go vote, or I protest in writing, in legal. Those are the ways we do it in America. Where a country will crumble is when people coming into a country do not assimilate to that country. That doesn't mean you forget Day of the Dead, and whatever cultures[,] you maintain your language. That doesn't mean that. But you're not gonna drive on the left side of the road, and you're not gonna impose Sharia law. Because it's not. [T]his. [C]ountry. But what is happening, and I can say it a lot more than you because I've lived longer. It's almost as America's assimilating to THOSE countries.

Arnold's speech continued, discussing the Cuban Missile Crisis and the Pope's opposition to the construction of a wall at the United States’ southern border before digressing into a discussion of a local sex offender in the news.

Okay, so keep you[r] house when the guy next to you has to put a sign out saying that he's a sex offender. And welcome him to the neighborhood. That's fine. And maybe that person needs that kind of welcome. And if you didn't hear in Houston, there was a—he was a Mariachi teacher. And the Principal[ ] also got removed. She hired him, but she was paying him out of a different account. Il[l]egal. The guy had about five counts of molestation, lewd exposure to young people, and there he was working in the school system. So you can say "Well, he needs a second chance[."] Tell that to the people that he abused. Tell that to those kids.

In the days that followed, Arnold continued to exhibit hostility toward Oliver and treat her more harshly than other students as a result of her refusal to transcribe the Pledge, including by repeatedly moving her seat, intentionally calling her by the wrong name, and making disparaging comments about her accomplishments in extracurricular activities. Although Arnold denies treating Oliver differently than other students and maintains that he enforced his classroom rules evenly, the district court again found that these facts are genuinely disputed, and we thus must assume that Arnold singled Oliver out for hostile mistreatment as a result of her opposition to the Pledge assignment.

In response to Oliver's complaints, the Klein Oak assistant principal and associate principal held another meeting with Arnold in which they reminded him of the August 2017 meeting in which he was informed of Oliver's right to abstain from the Pledge. The principals instructed Arnold to maintain neutrality in class discussions and to be sensitive to students’ rights regarding the Pledge, and they told him to refrain from interacting with Oliver except as necessary. Arnold agreed to follow these instructions.

This agreement notwithstanding, hostilities between Arnold and Oliver continued to increase when, the following month, Arnold learned that Oliver had filed the initial complaint in the present lawsuit and named him among the defendants....